The complexities when a person dies without a will
With the National Wills Week campaign next week, in which people are urged to have a valid will drawn-up, a recent judgment in which a man died intestate, yet again highlighted the complexities when a person dies without a will.
In an application before the Gauteng High Court, Johannesburg, a mother and the executrix of her son’s estate, turned to court for an order that the man’s estranged father does not inherit half of his assets.
Kay Jacobs argued that the biological father, Selwyn Adams, played no role in her son’s life. She sought a declarator that her son Ivan Adam’s father, the first respondent, be declared “not to be a parent” in terms of the Intestate Succession Act, as to Ivan’s estate, and that she in her personal capacity be declared the sole parent.
Ivan was 29 when he died. He did not have a wife or children who would have stood to inherit. Jacobs and Adams had a brief relationship when Jacobs was eighteen. She fell pregnant with Ivan. Adams made a few payments to her before the pregnancy but showed limited interest in the child, the court was told.
Adams was not present at the birth and Jacobs and Adams never lived together. After the birth, in the first month, Adams gave Jacobs some nappies. He then essentially disappeared from their lives. When Ivan got hurt as a one year old, Adams visited him in hospital.
The court noted that on the facts before it, that was it, as far as Adams’ role as father was concerned, for some 29 years.
In the first year, Jacobs sporadically chased Adams for maintenance, via the Maintenance Court. He made sporadic payments. When Jacobs obtained employment, with Ivan being a year old, she gave up on chasing Adams for maintenance, and maintained Ivan herself. “Adams exited stage left, fully and finally,” Acting Judge Frank Snyckers noted.
Jacobs raised Ivan with the help of her mother and brothers. When Ivan was about six, Jacobs’ new partner, Phillip McCarthy, became the then child’s de facto father.
Judge Snyckers said the affidavit issued to court by the mother is firm that there was no relationship at all between Ivan and his father. Apart from the few maintenance payments that had been dragged out of him in the first year, Adams paid nothing at all over the 29 years of Ivan’s life.
Ivan was one of the victims of Covid-19, passing in July 2021. He had no spouse, no life partner, no romantic relationship at death, no children, no siblings and no dependents. He had been employed and ended up with a reasonable estate.
Under the provisions of the Intestate Succession Act (ISA) Jacobs and Adams, being Ivan’s surviving parents, would each inherit half from Ivan’s estate. But Jacobs wanted to declare herself the sole parent due to the father’s absence.
Judge Snyckers analysed relevant case law on the subject, as well as an article in a law journal. Based on that and his interpretation of the facts of this case, he commented that he had some concern whether this application sufficiently made out a case for a declaration of unworthiness, instead of a declaration of not being a parent.
He considered the fact that Adams severed all ties and failed in his parental duties. While he remained a parent under the Children’s Act, his conduct rendered him unworthy to inherit, the judge concluded.
zelda.venter@inl.co.za